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Public Lewdness

Public Lewdness is a Texas sex crime that forbids sexually explicit activity that can be seen by non-participants. Public Lewdness typically occurs in situations where a person performs a sexual act with another person in public (where other people can see).

State prosecuting attorneys might also charge a person with Public Lewdness charge if the person is simply mistaken that they are in a place that is appropriate for sexual activity. Public Lewdness may also be charged in conjunction with other similar sexual offenses such as indecent exposure.

A common act that results in a Texas Public Lewdness charge is having sexual intercourse with another person in a public area. If you are convicted of Public Lewdness in Texas, you may be required to be listed on the Texas Public Sex Offender Registry in addition to other criminal penalties.

Have you been charged with Public Lewdness? Call criminal lawyer Paul Saputo at (888) 239-9305.

The law was amended in 2017 with the passage of S.B. 1232 in the 8th Texas Legislature. Subsection (4) was removed from the law, effective September 1, 2017.1 This is discussed in more detail below.

an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse;

(3) act of sexual contact; or

(4) act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.

In simple terms, if a person is in public and having sexual contact with another person (or with an animal or fowl), they can be charged with the offense.

Subsection (4) was removed from the law by S.B. 1232, effective September 1, 2017. Now this conduct is covered in a separate offense called Bestiality. The new law, as it will be on September 1, 2017, is below:

(a) A person commits an offense if the person he knowingly engages in any of the following acts in a public place or, if not in a public place, the person he is reckless about whether another is present who will be offended or alarmed by the person’s his:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse; or

(3) act of sexual contact; or

(4) act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.

Public Lewdness is a Class A Misdemeanor. This means that the punishment can range from a small fine to up to a jail sentence of one year and a $4,000 fine. Public Lewdness might also require you to register as on the Public Sex Offender Registry for a certain period of time. You may be eligible for probation. Learn more about probation

The term “public place” has a very specific meaning in the law. Section 1.07 of the Texas Penal Code defines a public place as “any place to which the public or a substantial group of the public has access”. For example, while an apartment might be surrounded by a gate and restricted to residents only, the common areas and parking lot are still considered ‘public’ because the residents of the apartment complex are considered a substantial group. The inside of a car, while a personal ‘place’ to the owner, is still “in a public area” for purposes of the statute if the car is in a parking lot or on the side of the road.

Even if a person is not in a public place (for example an office in a building) he or she may still be charged with the offense if they were ‘reckless’ about whether someone else there would be offended or alarmed. For example, if two people were having consensual sexual intercourse in the back room of an office when a third party walked in, the people having intercourse may be charged because they alarmed or upset the third person who walked in.

If you didn’t realize the place you were in was a public place, we may be able to argue that you didn’t knowingly commit the act. The law requires that a person knowingly engage in the act, and knowingly perform the act in public. If you didn’t have knowledge of one of those elements, we may be able to win your case.

The word “reckless” also has a very specific meaning under Texas law. Section 6.03 of the Texas Penal Code defines reckless as “disregarding a substantial and unjustifiable risk that the result will occur.” This essentially means that to be reckless is to ignore a chance of the offense happening when there is no good justification. As in the previous example, it would be an unjustifiable risk to have intercourse in an office because there is a high risk of being discovered.

“Deviate Sexual Intercourse” simply means any contact of one personals genitals to the mouth or anus of another person, or penetrating the anus with either the genitals or a physical object.2 This is different than ‘sexual intercourse’, which can only mean sexual contract between a man and a woman’s genitals.

Dallas courts and courts in the surrounding counties don’t require you to know there were people around you who could have been offended or alarmed. There simply needs to be the risk of their presence.

Legal References:

1Senate Bill 1232, Sections 1 & 9-10

2Texas Penal Code Section 21.01(1) – “Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.”

Published by Criminal Defense AttorneyPaul Saputo on November 5, 2015 and last modified July 9, 2017